United States v. Daniel Mortimer

Citations: 52 F.3d 429; 1995 U.S. App. LEXIS 8456; 1995 WL 215888Docket: 360

Court: Court of Appeals for the Second Circuit; April 12, 1995; Federal Appellate Court

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Daniel Mortimer appeals his sentencing after pleading guilty to unlawfully transporting a firearm across state lines and carrying an explosive during a felony. The U.S. District Court for the Northern District of New York sentenced him to a total of 111 months in prison (51 months for the firearm charge and 60 months for the explosive charge) and ordered him to pay restitution of $28,303.50. Mortimer raises several challenges: 

1. He contests the assignment of criminal history points for a past felony marijuana possession conviction, which is no longer a felony in his state.
2. He disputes the assignment of separate points for two unrelated convictions that received concurrent sentences.
3. He argues the consecutive sentences violate the Double Jeopardy Clause, as per the plea agreement.
4. He questions the restitution amount, asserting it exceeds what he can pay and does not accurately reflect victims' losses.
5. He challenges his classification as an "organizer" under the Sentencing Guidelines.

The appellate court vacated the restitution order and remanded for reconsideration, affirming all other aspects of the sentence. Mortimer's criminal activities included multiple break-ins using explosives, culminating in a successful burglary in December 1990, where he and a co-conspirator stole nearly $23,000. Under his plea agreement, he pleaded guilty to charges related to this burglary, with the government dropping additional counts.

Mortimer was sentenced on March 8, 1994, with a base offense level of 18 for transporting a firearm in violation of 26 U.S.C. § 5861(j). The district court adjusted this level by subtracting two points for acceptance of responsibility and adding two points for being classified as an "organizer," resulting in an adjusted offense level of 18. His criminal history score was calculated at nine, placing him in criminal history category IV, which corresponds to a guideline range of 41 to 51 months for an offense level of 18. The court sentenced Mortimer to the maximum of 51 months for the firearm charge and an additional 60-month sentence for using an explosive during the commission of a felony, as mandated by 18 U.S.C. § 844(h), to run consecutively. The underlying felony was the interstate transportation of stolen property, violating 18 U.S.C. § 2314. Additionally, the court ordered restitution of $28,303.50, approximately half of what Mortimer agreed to in the plea deal.

In appealing his sentence, Mortimer contested the assignment of three criminal history points for a 1976 marijuana conviction, arguing that the classification of his offense changed in 1977 when possession of less than eight ounces was reclassified as a misdemeanor, which does not carry a sentence exceeding one year and one month. He asserted that federal courts should apply state law as it stands at the time of federal sentencing rather than at the time of the state conviction. Mortimer referenced the Sixth Circuit case, United States v. Morton, regarding the classification of prior drug offenses. If his argument were accepted, it would lead to a reduction in his criminal history score by disregarding the 1976 marijuana conviction.

A serious drug offense under 18 U.S.C. § 924 is defined as one with a maximum imprisonment term of ten years or more. Defendant Morton had five prior convictions that initially met this criterion; however, Tennessee revised its drug laws before his sentencing, potentially reducing the seriousness of at least two of these offenses. The Sixth Circuit evaluated whether to apply the current Tennessee law or the law at the time of Morton's original sentencing. Recognizing ambiguity in § 924, the court applied the rule of lenity, which favors the defendant when there are two reasonable interpretations of a statute. The court noted that Tennessee no longer considered Morton's previous offenses serious enough for a ten-year sentence. Consequently, it remanded the case for resentencing, requiring the district court to assess the seriousness of the remaining three convictions under current state law.

In contrast, the text argues that the Morton analysis does not apply to the current case because the Guidelines are unambiguous, and the rule of lenity is irrelevant in the absence of ambiguity. Under the Guidelines, prior sentences exceeding one year and one month within a 15-year window from the current offense must be counted, and Mortimer's conviction for marijuana fell within this scope. The Guidelines specify that only convictions that have been expunged, reversed, vacated, or deemed unconstitutional may be excluded from criminal history calculations, and do not account for subsequent state reclassification of offenses. Therefore, the court rejected Mortimer's claim of unfairness, noting that legal classifications may vary in significance over time.

A reduced penalty may indicate a reallocation of law enforcement resources rather than a diminished perception of the offense, as communities may still view marijuana sales with concern despite focusing on more harmful drugs. District courts must consider the actual state sentence imposed on a defendant when calculating criminal history points, unless exceptions under Section 4A1.2 apply, regardless of any subsequent reclassification of the offense. 

Mortimer challenges the district court's decision to count his New York marijuana possession and Pennsylvania burglary convictions as separate for Guidelines purposes, arguing they should be treated as related due to concurrent sentencing. However, the concurrent sentences do not equate to consolidation for sentencing, as they were imposed by different courts in different states on different dates. A close factual nexus is needed to establish relatedness, which Mortimer did not demonstrate.

Mortimer also contends that his offenses under 26 U.S.C. Sec. 5861(j) and 18 U.S.C. Sec. 844(h) were part of the same transaction, violating the Double Jeopardy Clause with consecutive sentences. However, the Double Jeopardy rights are personal and can be waived, which Mortimer did by signing a plea agreement for two felonies with stipulated consecutive sentences. As a result, this claim is considered waived, and the court does not address its merits.

Lastly, Mortimer challenges the restitution amount, the adequacy of supporting findings, and the requirement for immediate payment. The district court adequately considered Mortimer's financial status under 18 U.S.C. Sec. 3664(a) but failed to assess how his financial situation affects his ability to pay immediately and the impact of any third-party payments to victims under 18 U.S.C. Sec. 3663(e)(1). Consequently, the restitution order is vacated, and the case is remanded for reconsideration.

In United States v. Helmsley, the court established that a defendant who uses figures from a pre-sentence report in court without objection waives the right to challenge restitution amounts on appeal. However, subsequent rulings allow for the review of improper restitution as plain error, allowing Mortimer's challenges to be considered despite the lack of a timely objection.

Mortimer contends that the district court failed to adequately consider his financial situation during sentencing. While detailed findings are not mandatory, the court must show that it considered statutorily mandated factors under 18 U.S.C. § 3664(a), which include the victim's loss, the defendant's financial resources, and the needs of dependents. The court is required to demonstrate an affirmative consideration of the defendant's ability to pay, beyond merely referencing the pre-sentence report.

The sentencing transcript indicates that the district court met the criteria by addressing restitution and noting it considered Mortimer's financial condition, supported by his prior agreement to pay up to $56,000 in restitution. The court found no abuse of discretion in determining the total restitution amount, even in light of Mortimer’s limited financial resources, as indigent defendants can still be ordered to pay restitution when funds become available.

However, the court abused its discretion by requiring immediate payment of restitution from Mortimer, who reported no assets. Courts must have a factual basis for imposing immediate payment, and a reasonable payment schedule should be established upon remand. Additionally, the court failed to assess whether victims had received compensation from third parties, which could lead to double recovery, contrary to the mandates of 18 U.S.C. § 3663(e)(1).

Section 3663(e)(1) prohibits the imposition of restitution for losses compensated to victims, allowing for restitution to third parties that compensated victims as deemed just. All victim restitution must precede payments to others. Even if parties overlook these provisions, appellate courts must vacate restitution orders that fail to account for third-party payments. The government contends third-party payments do not diminish Mortimer's total restitution obligation since he must also compensate those third parties. Oversights in restitution do not necessitate reversal but require redistribution of payments, which the United States Attorney cannot modify; only the district court can adjust allocations per Section 3663. Consequently, the appellate court vacates the district court's restitution order and remands for reconsideration on how to allocate $28,303.50 among victims and third parties and to establish a payment schedule.

Additionally, Mortimer's appeal challenges the enhancement of his offense level due to being classified as an organizer under Section 3B1.1(c). Such determinations by the district court are upheld unless clearly erroneous. Evidence indicated Mortimer's significant role in the criminal scheme, including managing explosives and planning heists, supporting the district court's finding of his organizational role. The appellate court finds no merit in Mortimer's other challenges to the judgment.

The appellate court affirms the decision in all aspects except for vacating the restitution order, remanding for further proceedings. Both Philip, the defendant's brother, and David Vann entered guilty pleas. The specific count under Sec. 844(h) was not included in the original indictment but was part of a separate Information filed during the guilty plea. The appellees dispute the factual assertion regarding the quantity of marijuana possessed by Mortimer in 1976, but this dispute is unnecessary to resolve as the court rejects Mortimer's legal argument. The appellate record shows that two of the five offenses involved less than 0.5 grams of cocaine, which is punishable under revised Tennessee law by less than 10 years. The amount of cocaine involved in the other three offenses remains unclear. The court does not evaluate whether the case circumstances might warrant a downward departure, as Mortimer's counsel explicitly declined to seek such a departure during sentencing. Mortimer was sentenced at the top of the permissible range for the 5861(j) charge, indicating no intent for a downward departure. The government highlights Mortimer's failure to vacate or expunge his 1976 sentence as significant, referencing United States v. Beaulieau, which considered actions taken to eliminate the impact of a juvenile conviction. However, the relevance of Beaulieau is questioned, as it did not address a scenario where no action was taken. Co-defendant David Vann was also ordered to contribute to the $56,000 restitution. Mortimer has an agreement with the Bureau of Prisons to pay $25 monthly toward restitution, which the government did not acknowledge. The court emphasizes that a district court cannot delegate its authority regarding installment payment schedules. Additionally, Atkinson references the renumbering of 18 U.S.C. Sec. 3579 to 18 U.S.C. Sec. 3663 effective November 1, 1987.